EEOC launches hiring crackdown

by Walter Olson on April 16, 2007

Per the NLJ, it’s employers’ lucky day:

The federal government has launched an initiative aimed at cracking down on discriminatory hiring practices in the workplace — a program that could land unsuspecting employers in court, employment attorneys are warning….

Specifically, the EEOC will focus on hiring decisions that are based on names, arrest and conviction records, employment and personality tests and credit scores — all of which may disparately impact people of color….

Many states have laws that restrict employers from asking about or considering criminal records when hiring. The EEOC holds that if an employer denies a job to an applicant because he or she has a criminal record, it could be considered discrimination if the person is a minority.

For more on efforts to keep employers from taking applicants’ criminal records into account, see Feb. 13 and links from there (cross-posted from Point of Law).

{ 16 comments }

1 Supremacy Claus 04.15.07 at 11:10 pm

It’s professional courtesy.

The EEOC lawyers set up the employers for negligent hiring claims.

2 Jack Wilson 04.16.07 at 2:33 pm

So the EEOC is saying that companies who won’t hire murderers are discriminating against ‘people of color’?

3 David Wilson 04.16.07 at 3:07 pm

Re: SC’s point:

How difficult would it be to include qualified employer immunity for hiring done in good-faith conformity with the EEOC’s regulations?

And what are the chances we’d ever see such a thing?

Right.

Back to SC’s point.

4 ras 04.16.07 at 3:41 pm

What if the employer doesn’t even know the applicant’s race? I can foresee employment agencies who will distill that info out of an applicant’s info before presenting it to the employer, and possibly masking off other clues as well.

e.g. “This applicant, race not stated, was twice convicted of armed robbery.

5 Melvin 04.16.07 at 4:26 pm

Ras, most applications today do NOT have race on them (i.e. unlike gender, age, etc.)–it’s not allowed by law.

The employer I work for, in fact, left me with a Catch-22 that even higher-ups couldn’t answer: I had to account for all application by name, date, position(s) applied for, etc.–the form for that had a column for “race” on it, but the application did NOT have a space for “race” on it. That forced me to have to guess at race, since all I saw was the application 90+% of the time.

No one, even though I no longer have to account for the applications, could ever answer why “race” was on the applications log.

6 anon 04.16.07 at 5:48 pm

I work under a state license and they want to know about any criminal convictions when I apply or renew it. Should I contest this?

7 Deoxy 04.16.07 at 6:29 pm

“The EEOC holds that if an employer denies a job to an applicant because he or she has a criminal record, it could be considered discrimination if the person is a minority.”

But not if it’s a white male. Of course, the EEOC does not discriminate…

Typical BS – all those racist white people MUST be acting in a racist way somehow! That’s what white people DO! No, I’m not a racist, why do you ask?

Complete and utter BS.

8 Dr. T 04.16.07 at 8:37 pm

The irony is that the federal government always asks applicants about prior criminal records and performs extensive background checks on newly hired employees. You can be immediately terminated if the background check shows that you did not list crimes you committed.

9 ras 04.17.07 at 12:02 am

Melvin,

Your experience kinda confirms my point, I think:

If an applicant’s race is never asked, and if the employer makes a point of not wanting to know, even eschewing that knowledge when it is offered, then can the employer be sued for discrimination when the employer had no idea what the applicant’s race was?

[Well, putting aside the humor in my asking, on this blog of all blogs, if an innocent party can still be sued!]

Anyway, if not, then I can certainly see employment agencies offering to “sanitize” application forms by removing any info that might get the employer sued, including race.

10 jb 04.17.07 at 3:02 am

Where are all these easy jobs that you don’t have to work for and can’t be fired from?

I’m only half-joking: I’ll be looking for full-time work in a year and belong to at least one protected group.

11 MF 04.17.07 at 2:01 pm

I can see the next step. A company hires someone who had an extensive criminal record, but the company didn’t know because they weren’t allowed to ask. The new employee then goes on a criminal rampage. (Note that I have not made any claim about the race of this ex-con – he or she could be white, black, red, green or pink.) The company that hired the ex-con is now sued for putting their other employees (or customers, or whoever was victimized) at risk by hiring an ex-con. That would truly be the Overlawyered way, wouldn’t it?

This sounds like a perfect time to take the EEOC to court and get this kind of nonsense eliminated. Well, you really never know how the courts might rule on a case like this. And they never rule on hypotheticals, so I guess we’ll just have to wait for it to actually happen before testing the waters.

12 Deoxy 04.18.07 at 10:47 am

“So the EEOC is saying that companies who won’t hire murderers are discriminating against ‘people of color’?”

Yes… which is logically the same as imputing people of color in general as murderers. Nice, huh?

13 Richard Nieporent 04.18.07 at 2:36 pm

Let me correct one misconception with respect to resumes. I can tell you for a fact that resumes in the engineering/computer science fields are explicitly identified by employment agencies as being from minorities. There is a need for companies that do business with the government to prove that they don’t discriminate. The only sure way that they can do this is to hire enough minority employees to satisfy the government ‘s equal opportunity employment office.

14 Deoxy 04.19.07 at 10:05 am

So, in order to prove to the government’s satisfaction that you don’t discriminate by race, you are required to … discriminate by race.

Orwell was an optimist.

15 Richard Nieporent 04.19.07 at 11:10 pm

Sad, isn’t it? If you think that is bad Deoxy, wait till you hear this one. Recently the government changed their racial classification list. (No I don’t live in South Africa. Why do you ask?) I believe they added some additional Asian Pacific category. All employees were required to update their racial classification on their employee records. I was thinking or listing human in the race category but I decided that I was not ready for retirement just yet. I didn’t think they would take too kindly to my little protest.

16 Deoxy 04.20.07 at 10:55 am

Yes, I went through that as well; they said that we could opt out, which I did… which means that I am listed as “white”, apparently (I’ve checked). I guess everyone else benefits from this government-demanded racism, so they assume anyone who opts out must be white?

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